99 F.

3d 400

NOTICE: THIS SUMMARY ORDER MAY NOT BE CITED

AS PRECEDENTIAL AUTHORITY, BUT MAY BE CALLED
TO THE ATTENTION OF THE COURT IN A SUBSEQUENT
STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY
CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR
RES JUDICATA. SEE SECOND CIRCUIT RULE 0.23.
Lesly Medina ARANGO and Hector Londono, PetitionersAppellants,
v.
UNITED STATES of America, Respondent-Appellee.
Nos. 95-2394(L), 95-2396(CON).

United States Court of Appeals, Second Circuit.

Dec. 8, 1995.

APPEARING FOR APPELLANT: CHERYL J. STURM, West Chester,

PA.
APPEARING FOR APPELLEE: ZACHARY W. CARTER, United States
Attorney, Eastern District of New York.
E.D.N.Y.
AFFIRMED.
Before FEINBERG, JACOBS, CABRANES, Circuit Judges.

This cause came on to be heard on the transcript of record from the United
States District Court for the Eastern District of New York and was taken on
submission.

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,

ADJUDGED AND DECREED that the judgment of the District Court is
hereby affirmed.

Petitioners Lesly Medina Arango and Hector Londono appeal the denials of
their petitions, under 28 U.S.C. 2255 to vacate, set aside or correct sentence,
claiming that they received ineffective assistance of counsel. We affirm the
judgment of the district court.

On June 24, 1988, Arango and Londono each pled guilty to one count of
conspiracy to import cocaine, in violation of 21 U.S.C. 963. Arango did not
file an appeal; Londono filed a notice pro se but did not file a brief. In October
1994, petitioners commenced this action under section 2255, filing separate but
nearly identical motions challenging their convictions on various grounds. The
district court denied both petitions.

On appeal, Arango and Londono press only their claims of ineffective

assistance of counsel, charging five specific lapses: (1) failure to file a motion
to dismiss the indictment; (2) encouraging the petitioners to plead guilty to
charges they did not understand; (3) failure to object to a violation of 18 U.S.C.
3553(c); (4) failure to object to a two-level sentence enhancement for Arango;
and (5) failure to request a two-level minor role reduction for both petitioners.

To demonstrate ineffective assistance of counsel, Arango and Londono must

prove that (1) "counsel's representation fell below an objective standard of
reasonableness"; and (2) "counsel's errors were so serious as to deprive the
defendant of a fair trial ... whose result is reliable." Strickland v. Washington,
466 U.S. 668, 687-88 (1984).

The petitioners first contend that the indictment did not state a federal offense,
and that counsel was remiss in failing to file a motion to dismiss it. The
indictment charges that "[o]n or about and between January 20, 1988 and
February 19, 1988 ... within the Eastern District of New York and elsewhere,
the defendants HECTOR LONDONO and LESLY MEDINA ARANGO ... did
knowingly and intentionally conspire to import into the United States ...
cocaine ..., in violation of Section 952(a) of Title 21, United States Code."
Petitioners particularly fault the indictment for failing to name a "genuine
coconspirator," thereby omitting an element of the charged offense. Petitioners
also claim that the indictment is mere "boilerplate" that does not provide
protection against double jeopardy, and that the indictment violates Federal
Rule of Criminal Procedure 7(c) by not giving "a plain, concise and definite
written statement of the essential facts constituting the offense charged."

All of petitioners' arguments regarding the indictment are meritless. The

indictment sufficiently states the elements of a violation of 21 U.S.C. 963,

which provides that "[a]ny person who attempts or conspires to commit any
offense defined in this subchapter," including section 952(a), shall be punished.
The indictment also states the approximate time and place of the crime charged.
On these facts, we find the indictment is adequate both to give a "plain, concise
and definite written statement of the essential facts" of the charge and to
insulate petitioners from double jeopardy. We have "consistently sustained
indictments which track the language of the statute and, in addition, do little
more than state time and place in approximate terms." United States v. Trotta,
525 F.2d 1096, 1099 (2d Cir.1975) (quoting United States v. Salazar, 485 F.2d
1272, 1277 (2d Cir.1973), cert. denied, 425 U.S. 971 (1976). Nothing in the
statute requires the identification of coconspirators; indeed, it is well settled
that a coconspirator's identity is not required to prove conspiracy. Rogers v.
United States, 340 U.S. 367, 375 (1951); United States v. Medina, 32 F.2d 40,
44 (2d Cir.1994). Since the indictment was not defective, counsel's failure to
move for its dismissal is no sign of inadequacy.
9

Arango and Londono next claim that counsel erred during plea bargaining and
at the plea, because the plea itself lacked a factual basis, and because
petitioners did not understand the nature of the charges against them. These
contentions are also meritless.

10

"A reading of the indictment to the defendant coupled with his admission to the
acts described in it is a sufficient factual basis for a guilty plea, as long as the
charge is uncomplicated, the indictment detailed and specific, and the
admission unequivocal." United States v. O'Hara, 960 F.2d 11, 13 (2d
Cir.1992) (citations and internal quotation marks omitted). We have reviewed
the transcript of the plea colloquy and are satisfied that the district court
established a factual basis for the pleas of both petitioners. The district court
read to Arango and Londono the relevant count of the indictment and asked
each of them whether he or she understood the charge. Both unequivocally
answered in the affirmative. The district court went on to explain-meticulously--each of the five elements of the charged offense, and went on to
verify separately that each defendant entered into the subject conspiracy
knowingly, wilfully, intentionally, and voluntarily.

11

At the taking of their guilty pleas, the petitioners unambiguously acknowledged

that they understood the nature of the crime with which they were charged.
Londono and Arango cannot now belatedly claim to have suffered a confusion
that is unsupported by the record. See Fama v. United States, 901 F.2d 1175,
1178 (2d Cir.1990) (defendant's claim he did not understand the offense
charged fails when record shows district court explained elements and inquired
into factual basis for plea). "Solemn declarations in open court carry a strong

presumption of verity." Blackledge v. Allison, 431 U.S. 63, 76 (1977).

12

Arango and Londono claim that they did not know that a person cannot
conspire with a government informant or undercover agent. The petitioners also
claim they did not know that conspiracy requires more than assisting a willing
buyer of drugs to meet a willing seller. Had they known these things, the
petitioners claim, they would not have agreed to plead guilty. However, they do
not explain why their attorney should have apprised them of these propositions
in the law of conspiracy. They do not even claim that these principles are
germane. Specifically, the petitioners do not contend that they merely conferred
with a government agent, nor do they claim they only assisted a willing buyer
to meet willing seller.

13

In their brief, the petitioners concede the following facts: On January 21, 1988,
Londono told a government informant that a cocaine shipment was being
prepared in Colombia by "Miguel and Carmello." The next day, Arango called
the informant to tell the informant to pick up the shipment from the airport and
deliver it to her residence in New York. This shipment was intercepted by
Colombian authorities. On February 1, 1988, Arango told the informant to pick
up another shipment and deliver it to "Roberto" and Arango at a Queens
residence. Londono also discussed the same shipment with the informant.
Agents observed Londono bring a tote bag and a small box to Arango's
residence.

14

Any idea that the conspiracy charged against each petitioner was alleged to
have been completed solely by a government agent is refuted by the references
to three other participants (Miguel, Carmello, and Roberto); the fact that
Londono and Arango both discussed the same shipment with the informant;
and the fact that Londono was later seen entering Arango's residence. On these
facts, there is no ground to fault counsel for a supposed failure to apprise
Londono and Arango about the aspects of the law of conspiracy that petitioners
now contend were crucial. There is even less reason to find that the petitioners
suffered any prejudice from their ignorance on these points of law. Again, we
find no ineffective assistance of counsel at the plea.

15

Finally, Arango and Londono claim that counsel was ineffective at sentencing,
because counsel failed to make three objections: (1) the district court failed to
articulate a reason for the sentence as required under 18 U.S.C. 3553(c); (2)
Arango received an unjustified two-level enhancement for a supervisory role;
and (3) both petitioners should have received a two-level reduction for minor
roles. These claims are frivolous.

16

At Londono's sentencing, Londono and his counsel made statements conveying

the defendant's remorse and asking for leniency for the sake of Londono's
family. The prosecutor then pointed out that, according to the presentence
report, Londono initiated and engaged in negotiations with the informant for the
subject cocaine shipments. The district court said it would give the defendants a
sentence "down the middle," because "[t]here are pluses and minuses here." We
have said that "statements made at the time of sentencing must demonstrate that
the district judge thoughtfully discharged his statutory obligation, with a degree
of care appropriate to the severity of the punishment ultimately selected."
United States v. Lopez, 937 F.2d 716, 725 (2d Cir.1991) (citation and internal
quotation marks omitted). The district court's statement here sufficed to show
that the presence of both aggravating and mitigating factors caused it to choose
the sentence it imposed. Thus, the district court complied with 18 U.S.C.
3553(c). Moreover, Londono was not entitled to receive a reduction for a minor
role, as the court could have concluded from the presentence report that
Londono's role in the conspiracy was not minor.

17

At Arango's sentencing, the district court said, "Here again[,] there's [sic] some
pluses and some minuses." The court specified that the minuses were the
presence of drug records and a large amount of cash at Arango's arrest, and the
amount of cocaine involved in the offense. The pluses were "spelled out" at
sentencing by defense counsel. The district court's statement again sufficed to
demonstrate that the sentence imposed was arrived at after balancing the
aggravating and mitigating factors. Thus, the district court complied with 18
U.S.C. 3553(c).

18

It was not improper for the district court to deny Arango a role reduction and to
impose a two-level enhancement, because the court could conclude from the
presentence report that Arango was the contact person for the Colombian leader
of a drug distribution network and exercised control over another participant,
one "Roberto." See United States v. Jacobo, 934 F.2d 411, 418 (2d Cir.1991)
(facts relied on in sentencing need only be proven by preponderance of
evidence). Even in this appeal, Arango does not dispute the findings of the
presentence report.

19

Since there was no error in sentencing, petitioners cannot ascribe their

sentences to ineffective assistance of counsel.

20

For the reasons set forth above, we affirm the district court and deny the
petitions.